DiMare v.
Filed 6/5/13 DiMare v. Taylor CA2/8
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
CARLA DiMARE,
Plaintiff,
Cross-defendant and
Appellant,
v.
JOHN TAYLOR et al.,
Defendants,
Cross-complainants and
Respondents.
B237373
(Los
Angeles County Super.
Ct.
Nos. BC452400
and BC374997)
APPEAL
from orders of the Superior Court
of
County.
Deirdre Hill, Judge.
Affirmed.
Carla
DiMare, in pro. per.; Law Office of Lara M. Krieger, Lara M. Krieger; and
Law Office of Frances L. Diaz for Plaintiff, Cross-defendant and Appellant.
Nemecek
& Cole, Jonathan B. Cole, Mark Schaeffer and Tommy Q. Gallardo for
Defendants, Cross-complainants and Respondents.
__________________
This
appeal involves a fee dispute between two attorneys who represented a client in
a wrongful death-product liability action involving a death that took place in
2006. Unfortunately, this appeal does
not allow us to adjudicate with finality the division of fees between the
competing attorneys because although it has been four years since the two
attorneys first commenced their joint representation, their fee dispute is not
yet ripe for resolution. Instead, we
address warring anti-SLAPP motions filed by the two attorneys, along with
related orders, leaving for another day the award to the parties of their
respective shares of the proceeds from their legal work.
Carla
DiMare (doing business as the Law Office of Carla DiMare) appeals from four
orders: (1) granting the motion of
defendants John Taylor and the law firm of Taylor & Ring, LLP to strike
several causes of action from DiMare’s complaint arising from a fee sharing
dispute because those claims arose from Taylor’s First Amendment-protected
activity and therefore qualified as Strategic Litigation Against Public
Participation (Code Civ. Proc., § 425.16; SLAPP)
(2) denying DiMare’s motion to strike the Taylor defendants’
cross-complaint against her under the same provision; (3) awarding the
Taylor defendants attorney fees for their successful SLAPP motion; and
(4) denying her request for a preliminary injunction ordering the release
to her of a share of the attorney fees.
We affirm all four orders.
FACTS AND PROCEDURAL HISTORY
1.
Background
Facts
This
action arises from a dispute over a fee sharing arrangement between the Law
Office of Carla DiMare and John Taylor of the law firm of Taylor & Ring,
LLP.
Brenda Murillo and Murillo’s three minor children to represent them in their
wrongful death-product liability action after Murillo’s husband was killed by a
nail gun. In May 2009, Murillo agreed in
writing to amend the fee agreement to allow DiMare to hire additional counsel,
with such counsel to be paid by DiMare out of her contingency fee.
In
July 2009, Taylor and DiMare signed a fee sharing agreement that said any
attorney fees recovered in the Murillo action would be split 50-50 if the case
settled “up through and including the first mediation.†Taylor
would receive 60 percent of the fees recovered after the first mediation, up to
and including trial. Murillo consented
to and signed the fee sharing agreement, pursuant to California Rules of
Professional Conduct, rule 2-200. The
case settled for $5 million in July 2010 after two mediation sessions.
On
October 21, 2010, Murillo
fired Taylor. Murillo and DiMare contended Taylor was
falsely claiming reimbursement for nearly $60,000 in costs and had delayed
filing a petition to compromise the children’s claims (Prob. Code, § 3601) –
which was a prerequisite to disbursement of the settlement proceeds – because
he concealed that he had been busy working on other matters since July.
the result of a clerical error that he quickly corrected, that he had no
inkling Murillo was dissatisfied with his representation of her, and that
DiMare engineered his termination after he rejected DiMare’s demand that she
receive half of the attorney fees, even though she was entitled to only 40
percent because the case settled after the first mediation.
Setting
aside the factual clutter, what happened next can be briefly summarized. Although Taylor was no longer representing
the Murillos, he filed a notice of lien and an application to be awarded 60
percent of the money available for attorney fees in connection with the
petition to compromise the children’s claims that DiMare eventually filed. This spawned a protracted law and motion
battle over where to deposit the settlement check, the type of account, who
should control it, and whether any or all of the attorney fees should be paid
out in the interim.
The
Taylor-DiMare fee dispute became even more complicated when DiMare sued Taylor
on January 4, 2011, in a complaint that contained seven causes of action: declaratory relief over the right to fees
under the fee sharing agreement; constructive trust; interference with
prospective economic advantage; unfair business practices; conversion;
intentional infliction of emotional distress; and “punitive damages.†On January 7, 2011, the Murillos received
their share of the settlement proceeds and the rest, which represented the
amount available for attorney fees, remained in dispute as between DiMare and
Taylor.
although the petition to compromise the minors’ claims in that case remained
for adjudication.
2.
DiMare’s
Complaint
DiMare’s
complaint against Taylor begins with a lengthy list of alleged ethical
violations, incompetence, and misconduct by Taylor in order to explain both why
Murillo fired Taylor and why Taylor is not entitled to anything other than the
reasonable value of the legal services he provided. When the complaint begins to focus on the
alleged misconduct that justified the various causes of action, most of the
allegations are based on Taylor’s attempts to assert his rights under the fee
sharing agreement by way of pleadings and communications with the court as part
of the petition to compromise the claims of the three Murillo children. In paragraph 78, DiMare alleges that “[o]n
November 2, 2010, at a hearing on the Minors’ Petitions filed by [DiMare],
Taylor incontrovertibly interfered with and delayed the underlying lawsuit for
his own gain.†In the next paragraph,
she alleges that “[d]ue to Taylor’s wrongful interference at the
November 2 hearing, [she] had to then file amended proposed Orders on the
Minors’ Petitions, which further delayed†recovery of the settlement funds and
attorney fees. Paragraph 80 alleges
Taylor again tried to delay matters at a November 16 hearing on the
minors’ petitions. Paragraph 81 alleges
Taylor delayed matters for his own gain in three ways: (1) by not working on the minors’ petitions
for more than three months after the settlement was reached; (2) by
“improperly intervening†and demanding 60 percent of the attorney fees at the
November 2 and 16 hearings; and (3) by refusing to endorse the settlement
check. Paragraph 87 alleges that on
November 1, Taylor filed a “false notice of lien†in the Murillo action. DiMare next alleges Taylor had no contractual
arrangement with the Murillos, or other legal right, that allowed him to assert
a lien on the settlement funds. The
complaint then alleges Taylor’s refusal to endorse the settlement check or
agree to their deposit in accounts suitable to DiMare.
DiMare’s
legal causes of action incorporate these factual allegations. Her declaratory relief claim alleges that
Taylor was entitled to only the reasonable value of his services, if any. The second cause of action alleges that
Taylor was wrongfully tying up the attorney fees money, some or all of which
belonged to DiMare, warranting the imposition of a constructive trust over
those funds. The third cause of action
alleged that Taylor’s conduct was interfering with DiMare’s prospective
economic advantage arising from her contingency fee agreement with the
Murillos. Her fourth cause of action
claimed that Taylor’s multiple alleged ethical violations amounted to unfair
business practices, in violation of Business and Professions Code section
17200. Her fifth cause of action alleged
that Taylor had converted her money. Her
sixth cause of action alleged that Taylor’s conduct constituted intentional
infliction of emotional distress. Her
seventh cause of action, captioned as one for punitive damages, alleged that
Taylor’s asserted misconduct and violations of law were malicious and
deliberate, entitling her to punitive damages.
3.
Taylor’s
Cross-complaint
Taylor’s
cross-complaint alleged, and incorporated as exhibits, DiMare’s original and
amended contingency fee agreements with the Murillos and the fee sharing
agreement with DiMare. He alleged that
he negotiated a settlement after two mediation sessions, that a little more
than $1.9 million of that remained to cover the attorney contingency fee, that
he was entitled to 60 percent of that amount under the fee sharing agreement,
and that DiMare refused to pay him that amount.
Based on those allegations, Taylor stated causes of action for
declaratory relief, breach of contract, and two common counts. No mention was made of any litigation conduct
by DiMare as a source of her alleged breach of contract.
4.
SLAPP
Proceedings and Other Related Motions
On
February 28, 2011, Taylor filed a motion to strike all but DiMare’s declaratory
relief cause of action from her complaint, contending that the other causes of
action arose from Taylor’s First Amendment-protected litigation activity and
therefore qualified under section 425.16 as a SLAPP.
During
the next several months, the law and motion battlefront shifted back and forth
between the fee sharing dispute that remained from the Murillo action and
DiMare’s action against Taylor, including motions by both parties to release
some portion of the attorney fees to themselves. DiMare also challenged some of the judges
assigned to the actions, and the matter was passed around until it eventually
landed with Judge Deidre Hill in August 2011, who ruled that the petition to
compromise the minors’ claims that remained from the Murillo action was legally
related to the DiMare action against Taylor.
On
November 9, 2011, the trial court granted Taylor’s SLAPP motion and denied a
motion by DiMare seeking a preliminary injunction that would have ordered
Taylor to endorse the check for attorney fees in a certain type of account and
to release 40 percent of that sum to her.
Taylor then cross-complained against DiMare, stating causes of action
for declaratory relief, breach of contract, and two common counts.
In January 2012,
DiMare countered with her own SLAPP motion, contending that if her complaint
against Taylor arose from protected
activity, then by parity of reasoning the same must be true as to his
cross-complaint. Taylor filed separate
motions to recover his attorney fees in connection with his SLAPP motion
against DiMare’s complaint and for defending his cross-complaint against
DiMare’s SLAPP motion. On March 1, 2012,
the trial court denied DiMare’s SLAPP motion and granted Taylor’s motion
seeking slightly more than $106,000 for successfully bringing his SLAPP motion against most of DiMare’s complaint. In July 2012, the trial court granted
Taylor’s motion for attorney fees for successfully opposing DiMare’s SLAPP motion against his cross-complaint,
awarding him nearly $49,000.
5.
Appellate
Proceedings and DiMare’s Attempt to Raise Issues That Were Not Properly
Appealed
DiMare
filed a notice of appeal on November 15, 2011, from the orders of November 9,
2011 (B237373), which includes the orders granting Taylor’s SLAPP motion and
denying her motion for a preliminary injunction. On April 18, 2012, DiMare filed another
notice of appeal from the March 1, 2012 orders, which would include the denial
of her SLAPP motion and the order awarding Taylor fees for having brought his
SLAPP motion (B240649). Those appeals
were consolidated for all purposes as B237373.
At the
conclusion of DiMare’s opening appellate brief, she asks us to reverse several
other orders that are not properly before us.
These are: a March 30, 2011 order
she contends improperly “reopened†the Murillo action, reversed a previous
order finding that her action and the Murillo action were unrelated, and taking
jurisdiction over Taylor’s request for a 60 percent share of the fees; an
October 7, 2011 order denying DiMare’s motion to reconsider the March 30 order;
a motion to strike Taylor’s lien; and an order that DiMare lacks standing to
assert Taylor’s alleged ethical violations.
Taylor has
asked us to strike those portions of DiMare’s brief because they relate to
orders that are either nonappealable or that were not appealed. He has also asked us to strike from the
record certain documents relating to those orders. DiMare contends her appeal from the March and
October 2011 orders is proper because her notice of appeal of November 15, 2011,
stated that she appealed from the orders of November 9, 2011, and all orders
upon which they were based, and then attached copies of those orders to her
notice of appeal.
We reject her contention that her
November 15, 2011 notice of appeal was sufficient to perfect appeals from
anything other than the November 9, 2011 orders granting Taylor’s SLAPP motion
and denying her motion for injunctive relief.
The November 2011 notice of appeal stated that she appealed from the
November 9 orders and “any rulings upon which it is based, including Oct. 7,
2011.†Although the other orders were
attached to DiMare’s later-filed case information statement, they were not
included with the notice of appeal.
Setting aside whether any of the additional orders she wants us to
reverse were either appealable at all, and, if so, were timely appealed, her
oblique reference to any rulings upon which the November 9 orders were based
was insufficient to invoke the jurisdiction of this court. (Kronsberg
v. Milton J. Wershow Co. (1965)
238 Cal.App.2d 170, 172, fn. 1.)
We
therefore limit our discussion and holdings to only those properly appealed
orders that are before us. As a result,
we deem it unnecessary to grant Taylor’s motion to strike references to the
nonappealable orders from DiMare’s appellate brief and strike from the record
documents related to those orders.
The same is true as to any
appellate challenge by DiMare to the July 2012 order awarding Taylor attorney
fees for successfully opposing DiMare’s SLAPP motion. Taylor was awarded those
fees in July 2012, well after the notices of appeal in these consolidated
appeals, and that order is the subject of a separate appeal (B244264). At oral argument of this matter, DiMare
argued that we should at least consider the trial court’s finding that her
SLAPP motion was frivolous because that issue was decided at the March 1,
2012 hearing. Our review of the record
shows otherwise.
Although counsel for Taylor
said during the March 1 hearing that the trial court had tentatively found that
DiMare’s SLAPP motion was frivolous, the trial court itself said no such thing
during that hearing, and the issue is not mentioned in either its tentative
ruling or minute order from that date.
However, the minute order from the July 30, 2012 hearing where the
trial court heard argument on Taylor’s motion to recover his attorney fees for
successfully opposing DiMare’s SLAPP motion states it was taking under
submission Taylor’s motion “for an Order Finding Cross-Defendant’s [SLAPP]
motion Frivolous and For Award of Attorney’s Fees and
Costs . . . .†In
short, all issues related to the propriety of the trial court’s order awarding
Taylor attorney fees for having successfully opposed DiMare’s SLAPP motion are
part of DiMare’s separate appeal, and that is where we will resolve them.
To
summarize, we address the following orders only: (1)
the order granting Taylor’s SLAPP motion; (2) the order denying
DiMare’s SLAPP motion; (3) the order granting Taylor attorney fees for
having successfully brought his SLAPP motion; and (4) the order denying
DiMare’s motion for a preliminary injunction ordering the release to her of 40
percent of the attorney fees.
DISCUSSION
1.
The SLAPP
Statute and Standard of Review
Section
425.16 was enacted to address a sharp rise in the number of lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom
of speech and petition, and for the redress of grievances. (§ 425.16, subd. (a).) The statute provides that a “cause of action
against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will
prevail on the claim.†(§ 425.16,
subd. (b)(1).)
The
trial court undertakes a two-step process when considering a defendant’s SLAPP
motion. First, the trial court
determines whether the defendant has shown the challenged cause of action
arises from protected activity. The
trial court reviews the pleadings, declarations, and other supporting documents
to determine what conduct is actually being challenged, not whether that
conduct is actionable. The defendant
does not have to show the challenged conduct is protected as a matter of law;
only a prima facie showing is required.
(People ex rel. Fire Ins. Exchange
v. Anapol (2012) 211 Cal.App.4th 809, 822.) If the defendant shows the challenged conduct
was taken in furtherance of his First Amendment rights of free speech,
petition, and to seek redress of grievances, the trial court must then
determine whether the plaintiff has shown a probability of prevailing on the
claim. (Ibid.)
We
review the trial court’s ruling on a SLAPP motion independently, engaging in
the same two-step process. (
177 Cal.App.4th 471, 478.) We do
not weigh credibility or the weight of the evidence. Instead, we accept as true the evidence
favorable to the plaintiff and evaluate the defendant’s evidence only to
determine if it has defeated plaintiff’s evidence as a matter of law. (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269,
fn. 3.)
2.
DiMare’s
Challenged Causes of Action Were Properly Dismissed
A.
The Nondeclaratory Relief Causes of Action
Arose From Protected Activity
The
SLAPP statute defines acts in furtherance of
rights to include: any written or oral
statement or writing made before a legislative, executive, or judicial
proceeding (§ 425.16, subd. (e)(1)); and any written or oral statement or writing
made in connection with an issue under consideration or review by a
legislative, executive, or judicial body (§ 425.16, subd. (e)(2)). The right to petition generally involves
pursuing a remedy afforded by a branch of government and includes filing a
lawsuit, seeking administrative action, and lobbying or testifying before a
legislative or executive body. (
156 Cal.App.4th 1508, 1523-1524.)
As
Taylor concedes, he did not move to strike DiMare’s declaratory relief cause of
action because that was based on a contract enforcement dispute that did not
involve protected activity under SLAPP.
In contrast, the tort causes of action that were stricken from DiMare’s
complaint are based on Taylor’s conduct in connection with litigating the
petition to compromise the Murillo children’s claims – filing a notice of lien,
filing pleadings seeking distribution of attorney fees pursuant to the fee
sharing agreement, and engaging in various communicative acts with the court
about those matters. For that reason,
Taylor contends those claims did arise from his protected litigation
activity. We agree.
DiMare
cites several decisions for the proposition that SLAPP does not apply to her
claims because any litigation activity by Taylor was merely incidental to the
conduct that gave rise to her claims – his interference with her ability to get
paid from the Murillo settlement proceeds.
Most of these decisions concern actions against lawyers for either
malpractice or for breaches of fiduciary duties, where the lawyer’s
representation of the client-plaintiff in litigated matters was deemed
incidental to the gravamen of the actions against the lawyers. (Coretronic
Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381 [client sued
lawyer for fraud, conspiracy, and related claims arising from lawyer’s dual
representation of party with adverse interests]; Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th
1264 [client sued lawyer for breach of fiduciary duty based on false advice
that induced client to pay exorbitant fee]; Freeman
v. Schack (2007) 154 Cal.App.4th 719 [breach of contract and breach of
fiduciary duty action by clients against lawyer who abandoned them in order to
represent adverse interests in same litigation]; Kolar v. Donahue, McIntosh & Hammerton (2006)
145 Cal.App.4th 1532 [garden variety malpractice action for mishandling
litigation]; Benasra v. Mitchell
Silberberg & Knupp LLP (2004)
123 Cal.App.4th 1179 [breach of fiduciary duty action against lawyer for
representing parties with conflicting interests]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624
[legal malpractice claim].)
The court in
(2011) 198 Cal.App.4th 1153 distinguished several of these decisions in a
case where an employer being sued for wrongful termination by its former
in-house counsel cross-complained against the lawyer for breach of fiduciary
duty based on allegations that the former employee falsely reported to the
state insurance commissioner that the company was about to auction artwork
owned by another entity. On appeal from
an order dismissing the cross-complaint under the SLAPP statute, the appellate
court reversed as to the breach of fiduciary duty claims because, unlike
decisions such as those cited here by DiMare, those claims were based on the
lawyer’s communications with the insurance commissioner, conduct that was both
protected under SLAPP and not incidental to the causes of action. (Id.
at pp. 1170-1171.)
DiMare’s
allegations against Taylor fall into this category. As set forth in our Facts and Procedural
History, above, DiMare alleged Taylor interfered with her right to recover her
attorney fees by filing a false notice of lien in the Murillo action, by his
conduct in connection with two court hearings in November 2010, and by
otherwise improperly intervening in her attempts to have the court rule on the
petition to compromise the Murillo minors’ claims and allocate the fees and
costs.
The litigation
privilege (Civ. Code, § 47, subd. (b)) is nearly coextensive with the
parameters of protected activity under the SLAPP statute, and cases involving
that privilege inform our interpretation of the SLAPP provision. (Gallanis-Politis
v. Medina (2007) 152 Cal.App.4th 600, 617 & fn. 14.) The litigation privilege has been extended to
various liens, including a lis pendens, an assessment lien, and a mechanic’s
lien. (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 831; see
California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 477 [the
act of filing medical services lien claims in a workers’ compensation case is
protected litigation activity under the SLAPP statute].) We see no reason why that rationale does not
extend to attorney liens as well. As we
discuss in part 2.B., post,
litigating one’s position in connection with a motion pending before a court
clearly constitutes litigation activity that is protected by the litigation
privilege. We therefore conclude
DiMare’s several tort causes of action arose from Taylor’s protected litigation
activity.
DiMare makes
several other arguments to support her contention that her complaint did not
arise from Taylor’s protected litigation activity: (1) the trial court lacked jurisdiction to
resolve the fee dispute, requiring her to bring a separate action;
(2) only those proceedings “authorized by law†are protected by the SLAPP
statute, and Taylor’s conduct was unauthorized because his conduct was
unethical and he had no right to a lien; (3) the trial court should have
been disqualified for receiving campaign donations from Taylor and by making
comments reflecting bias; (4) when she sued Taylor in January 2011,
nothing was under consideration by a court; (5) she was complying with her
ethical responsibilities by filing suit; (6) Taylor’s motion was heard
more than 30 days after the complaint was filed, in violation of the SLAPP
statute; and (7) the trial court ruled based on her original complaint
instead of the amended complaint she later filed. We take each contention in turn.
As to the first,
she cites older authority (Law Offices of
Stanley J. Bell v. Shine, Browne & Diamond (1995) 36 Cal.App.4th
1011; Goldberg v. Superior Court
(1994) 23 Cal.App.4th 1378) to support her claim that she was required to
file her separate action because the trial court lacked jurisdiction to resolve
her fee dispute with Taylor. More recent
decisions (Padilla v. McClellan
(2001) 93 Cal.App.4th 1100 (Padilla);
Curtis v. Estate of Fagan (2000)
82 Cal.App.4th 270 (Curtis))
disagree and have concluded that under Probate Code section 3601, the trial
court hearing a petition to compromise a minor’s claim is entitled to resolve a
fee dispute between lawyers and allocate the amount of fees.
Her second
contention is based on a misreading of the statute, which states that acts in
furtherance of protected activity include written or oral statements or
writings made before or in connection with an issue under review “by a
legislative, executive, or judicial body, or
any other proceeding authorized by law . . . .†(§ 425.16, subd. (e)(1) & (2),
italics added.) DiMare apparently reads
this language to mean that a proceeding before a judicial body is not
authorized by law if the person taking part in that proceeding cannot prevail
on the merits, in this case because Taylor’s conduct was allegedly unethical
and he had no right to a lien on the fees.
Even if she is correct about Taylor’s conduct, this argument relates to
the second prong of the SLAPP motion analysis – whether a plaintiff suing over
protected activity can show a probability of prevailing on the merits.
Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294,
305.)
As best we
understand it, DiMare’s third contention seems to be that the trial court
lacked jurisdiction to even rule on the competing SLAPP motions because of
conflicts of interest arising from having attempted to mediate the fee dispute
and from receiving campaign donations from the Taylor law firm. The argument in DiMare’s opening appellate
brief refers to factual assertions in her statement of facts, but each
assertion concerns the period before Judge Hill was assigned to this case. For that reason alone, we deem the issue
waived.
The fourth
contention – that there was nothing under consideration by a court immediately
before she sued Taylor – is patently wrong.
She had filed the minors’ petition to compromise and Taylor had filed
his notice of lien and application to be awarded fees, conduct which formed the
basis of her complaint.
The fifth
contention – that she was complying with her ethical responsibilities by suing
Taylor – has no bearing on the issue of whether her complaint was subject to a
motion to strike under the SLAPP statute.
The sixth
contention – that the SLAPP motion was procedurally defective because it was
not heard within 30 days after it was filed – is rejected for two reasons. First, the provision states the motion shall
be scheduled “by the clerk†for a hearing within 30 days after filing “unless
the docket conditions of the court require a later hearing.†(§ 425.16, subd. (f).) Setting aside the issue whether Taylor had
any responsibility for ensuring the clerk timely calendared a hearing on his
SLAPP motion, DiMare does not address or acknowledge that a hearing on this
matter was delayed for several months in part because she challenged some of
the judges assigned to hear the matter.
We therefore deem the issue waived.
(Landry v. Berryessa Union School
Dist. (1995) 39 Cal.App.4th 691, 699-700.) Furthermore, DiMare does not contend that she
ever objected to the delayed hearing. As
a result, any objections to this supposed procedural defect were waived. (Wiley
v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177,
187-188.)
DiMare’s final
contention is that instead of deciding the motion based on her original
complaint, the trial court should have based its ruling on her amended
complaint against Taylor, which was filed nearly three months after Taylor
filed his SLAPP motion. The law in this
area appears uncertain. Some decisions
state an amended complaint filed after a SLAPP motion is filed need not be
considered. (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011)
194 Cal.App.4th 873, 880, fn. 2.)
Others seem to hold only that a complaint cannot be amended after a
trial court grants a defendant’s SLAPP motion.
(Martin v. Inland Empire Utilities
Agency (2011) 198 Cal.App.4th 611, 628.) We need not resolve that issue, however. DiMare does not contend how her amended
complaint differed or explain how the trial court’s failure to consider those
differences constituted error. Nor does
she contend that she raised this issue with the trial court. Therefore, we alternatively hold that the
issue was waived. (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, ___
[155 Cal.Rptr.3d 892, 914] [appellant has burden to affirmatively
demonstrate trial court error through meaningful legal analysis supported by
citations to authority and citations to facts in the record that support the
claim of error].)
B.
DiMare Cannot Prevail on the Merits
After determining
Taylor satisfied the first SLAPP motion prong by showing DiMare’s claims arose
from protected activity, the trial court found DiMare did not carry her burden
of showing a probability of prevailing on the merits of her claims because each
was barred by the litigation privilege.
We agree.
The litigation
privilege is codified in Civil Code section 47, which provides, as relevant
here, that a publication or broadcast made in any judicial proceeding by
litigants or other authorized participants is privileged. (§ 47, subd. (b).) The privilege applies to any communication
and to all torts except malicious prosecution.
(Gallanis-Politis v. Medina,
615.) It extends to any publication
required or permitted by law in the course of a judicial proceeding to achieve
the objects of the litigation, even if the publication occurs outside the
courtroom in the absence of a court function or the court’s officers. It also extends to steps taken before or
after a judicial proceeding. (
acts that are necessarily related to privileged communicative conduct. (Ibid.)
The litigation
privilege applies to motions filed by persons seeking relief from a court or
making applications for judicial orders, including motions for attorney
fees. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th
510, 522 & fn. 7 [motion for statutory private attorney general
fees].)
Applying these
principles here, we conclude DiMare’s claims were barred by the litigation
privilege.
arise from Taylor’s conduct in filing a notice of lien and petitioning the
court to award him 60 percent of attorney fees.
His noncommunicative acts refusing to endorse the settlement check were
necessarily related to his privileged communications.
DiMare contends
the litigation privilege does not
apply here, but none of her contentions is well taken. Distilled, she argues Taylor cannot take advantage
of the litigation privilege because he had no right to take part in the Murillo
action from that point on, his actions had no connection to the Murillo case at
that point, and he had no right to recover 60 percent of the attorney fees
because his actions were unlawful and unethical. In essence, she contends Taylor’s conduct was
not privileged because his claims were without merit and procedurally
improper. Accepting DiMare’s
interpretation of the litigation privilege would swallow it whole. The privilege applies regardless of the
merits of the claims brought in court (Feldman
v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1489) and
regardless of whether the person bringing those claims lacked standing to do
so. (Obos
v. Scripps Psychological Associates, Inc. (1997) 59 Cal.App.4th 103,
108.) Because the claims against Taylor
are based on his participation in judicial proceedings, we conclude those
claims are barred by the litigation privilege.
3.
Taylor’s
Cross-complaint Did Not Arise From Protected Activity Under the SLAPP Statute
DiMare contends
that if her complaint against Taylor over their fee dispute arose from
protected activity that justified a SLAPP dismissal of most of her claims, then
the same must be true as to Taylor’s cross-complaint. A contrary ruling leads to inconsistent
outcomes, she contends, such that we must reverse the order denying her SLAPP
motion to Taylor’s cross-complaint if we affirm the order granting his SLAPP
motion to her complaint.
There is a surface
logic to her position, but no more.
DiMare’s complaint alleged numerous instances of litigation-related
conduct by Taylor by way of his notice of lien and participation in the
hearings on the Murillo minors’ petition to compromise their claims. Taylor’s cross-complaint mentioned no
litigation conduct by DiMare. Instead,
it alleged she refused to pay him 60 percent of the attorney fees recovered in
the Murillo action, thereby breaching their contract. Based on those allegations, Taylor seeks
declaratory relief, breach of contract damages, or common count remedies. DiMare contends she is entitled to SLAPP
protections because Taylor’s cross-complaint arose in the context of her legal
representation of the Murillos.
That is not the
test, however. It is not enough that an
action may have been triggered by protected activity, or that such activity is
evidence of liability. When a claim is
essentially one to determine the parties’ rights and obligations under a
contract, a SLAPP motion will not lie. (
193 Cal.App.4th 1301, 1307-1309 [declaratory relief action arising from
asserted breach of settlement agreement]; Applied
Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008)
164 Cal.App.4th 1108, 1118.)
With this in mind,
we see no inconsistency between the two SLAPP rulings. Taylor’s SLAPP motion was expressly not aimed
at DiMare’s declaratory relief cause of action to determine the parties’ rights
under their fee sharing agreement, a cause of action that did not challenge
protected activity. Taylor’s
cross-complaint really seeks the same relief as DiMare’s remaining claim: to determine their rights to recover fees
under their fee sharing agreement.
Because DiMare did not establish the first prong of the SLAPP analysis –
that the claims arose from protected activity – the trial court did not err by
granting Taylor’s motion.
4.
Attorney
Fees to Taylor for Defending DiMare’s SLAPP Motion
DiMare contends we
should reverse the order granting Taylor more than $106,000 in attorney fees
for bringing his SLAPP motion because the hourly rates charged were too high,
and because the number of hours claimed were excessive on their face and
included work for time spent on matters other than that motion.
A defendant who
brings a successful SLAPP motion is entitled to recover its attorney fees and
costs in connection with the motion, not the entire action. (§ 425.16, subd. (c)(1);
(2011) 198 Cal.App.4th 191, 218.)
The fees awarded should include services for all proceedings initiated
by the party opposing the SLAPP motion, and the statute is broadly construed to
carry out the legislative purpose of reimbursing the prevailing defendant for
expenses incurred in defeating a baseless lawsuit. (Jackson
v. Yarbray (2009) 179 Cal.App.4th 75, 92-93.) The trial court exercises its discretion to
determine the amount of fees and costs to award in light of the defendant’s
relative success in achieving its litigation objectives. (City
of Industry, at p. 218.) We
review the trial court’s ruling under the abuse of discretion standard and will
not reverse unless it is manifestly excessive under the circumstances. (Mallard
v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 544-545.)
In accord with the
legal principles stated above, the trial court ruled Taylor was entitled to
recover fees and costs incurred in connection with his successful SLAPP
motion. The trial court found the hourly
rates charged ($415 for a lawyer with 35 years experience, $385 for lawyers
with 25 and 12 years of experience, $300 for a lawyer with two years of
experience, and $135 for a paralegal with 20 years of experience) were
reasonable. It also found the number of
hours claimed (233.5) were incurred in connection with the motion to strike and
were reasonable, especially given the need to respond to DiMare’s tenacious
litigation tactics.
We see no basis
for upending the trial court’s finding that the hourly rates charged were
reasonable. As for DiMare’s contention
that fees were improperly awarded for time spent on matters that were not
properly connected to the SLAPP motion, her opening appellate brief does not
specify any billing entries she contends are unnecessary or unconnected to the
SLAPP motion. Nor does it state where
any such billing entries can be found in the record. Instead, DiMare does no more than offer
general characterizations of categories of billing entries supported by
citation to her declaration in opposition to Taylor’s attorney fees
motion. That declaration suffers from
the same defect – it merely characterizes categories of charges without
citation to any specific ones included in the fees motion. As a result, we deem the issue waived. (Inyo
Citizens for Better Planning v. Inyo County Bd. of Supervisors (2009)
180 Cal.App.4th 1, 14 [appellate court not obligated to search the record
to see if it contains support for appellant’s assertions].)
Although DiMare
does mention some specific billing entries in her appellate reply brief, we may
still treat the issue as waived because those entries were not addressed until
that time. (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009)
177 Cal.App.4th 209, 219, fn. 4.)
We alternatively hold on the merits that DiMare has failed to carry her
burden of demonstrating error.
In her appellate
reply brief, DiMare cites to several pages from the billing summary submitted
by Taylor in support of its attorney fees motion. From within this group of pages, she refers
to portions of billing entries such as “recusal,†“research re case assignment
to [Judge] Hill,†“coordination of . . . dates,†“binders of motions on
calendar,†“prepare for hearing on . . . injunction,†and “communications with
outside counsel.†Setting aside DiMare’s
failure to more fully specify the billing entries she is challenging, she fails
to mention that virtually every entry on the pages she cites, when read in
full, refers to the SLAPP motion. As for
the few that do not specifically do so, the supporting declaration that
accompanied the billing summary said that all of the tasks listed in the
summary were performed in connection with the SLAPP motion and that most of
those were “reactions to Ms. DiMare’s acts, communications, and pleadings in
connection with†that motion.
DiMare does not
discuss this declaration or contend the trial court was not free to rely on it
when making its factual findings. Her
failure to do so not only waives the issue, it leads us to conclude there was
evidentiary support for those findings and no abuse of discretion occurred.
5.
No Error
in Denying Request for Injunction to Release Some of the Fees
A few weeks before
Taylor filed his SLAPP motion, DiMare filed a motion seeking a preliminary
injunction that would order Taylor to deposit the settlement check into a certain
type of account and release 40 percent of the amount available for attorney
fees to her. That motion was heard and
denied at the same hearing where the trial court granted Taylor’s SLAPP motion. DiMare contends the trial court abused its
discretion by denying the injunction because her right to 40 percent of the
fees is undisputed and conceded by Taylor, who could recover no more than 60
percent under either their fee sharing agreement or a quantum meruit theory.
In deciding
whether to issue a preliminary injunction, the trial court considered two
factors: (1) the likelihood that
the plaintiff will prevail on the merits at trial; and (2) the interim
harm the plaintiff is likely to suffer if the injunction is denied as compared
to the harm the defendant will likely suffer if the injunction is granted. The second factor involves consideration of
such things as the inadequacy of other remedies, the degree of irreparable
harm, and the need to preserve the status quo.
(14859 Moorpark Homeowner’s Assn.
v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.) After deeming DiMare’s motion as one seeking
a mandatory injunction, the trial court denied her request for a preliminary
injunction because money damages were sufficient and she had not shown
irreparable injury. We review the trial
court’s order for an abuse of discretion.
(Ibid.)
On appeal, DiMare
devotes little time to this issue, contending only that she is forced to wait
for her money while her dispute with Taylor proceeds to trial, and that her
right to at least 40 percent of the funds is undisputed. Because the funds have been deposited with
the court and are on hand to satisfy any judgment in favor of DiMare, she has
an adequate remedy at law. As a result,
there was no irreparable harm for purposes of granting a preliminary
injunction. (Abrams v. St. John’s Hospital & Health Center (1994)
25 Cal.App.4th 628, 639, fn. 2; Friedman
v. Friedman (1993) 20 Cal.App.4th 876, 889-890.)
DiMare also
contends injunctive relief should have been granted to prevent future ethical
violations by Taylor. (
212 Cal.App.4th 614, 630-631 [injunctive relief proper only when there is
a threat of continued wrongful conduct].)
Accepting for discussion’s sake only that any ethical violations
occurred, there is no showing of the likelihood of further conduct. The disputed funds are in the control of the
trial court and DiMare’s allegations will be resolved at trial.
DISPOSITION
The orders
granting Taylor’s SLAPP motion, awarding him attorney fees in connection with
that motion, and denying DiMare’s SLAPP motion and request for a preliminary
injunction ordering the release of 40 percent of the attorney fees, are
affirmed. Taylor shall recover his costs
on appeal.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
FLIER,
J.
name="_ftn1" title="">
further undesignated section references are to the Code of Civil Procedure
unless otherwise stated.
name="_ftn2" title="">
we refer to DiMare, we include her law firm where applicable. When we refer to Taylor, we include Taylor
& Ring where applicable.
